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17/10/2023
AT: The Supreme Administrative Court overruled a decision of the lower court on the grounds that it failed to fully examine the possibility of a violation of the right to private and family life for the applicant and her disabled husband by not holding an oral hearing

ECLI
ECLI:AT:VWGH:2023:RA2021210339. L00
Input Provided By
EUAA IDS
Other Source/Information
Type
Judgment
Original Documents
Relevant Legislative Provisions
Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration; European Convention on Human Rights
Reference
Austria, Supreme Administrative Court [Verwaltungsgerichtshof - VwGH], Applicant v Federal Office for Immigration and Asylum (Bundesamt für Fremdenwesen und Asyl‚ BFA), No Ra 2021/21/0339, ECLI:AT:VWGH:2023:RA2021210339. L00, 17 October 2023. Link redirects to the English summary in the EUAA Case Law Database.
Permanent link to the case
https://caselaw.euaa.europa.eu/pages/viewcaselaw.aspx?CaseLawID=3833
Case history
Other information
Abstract

The case concerned a Russian national from Dagestan who contested a return decision lodged by the BFA on 22 February 2021 and upheld by the Federal Administrative Court with judgement of 1 April 2021. The Supreme Administrative Court had annulled the judgment of the Federal Administrative Court in a first onward appeal on the grounds that the Federal Administrative Court had failed to consider that the applicant's husband was dependent on her support because he had lost his right forearm during the Chechen war and suffered from post-traumatic stress disorder (PTSD) and therefore violated Article 8 of the ECHR when upholding the return decision. In the continued proceedings, the Federal Administrative Court dismissed the appeal as unfounded without holding an oral hearing on the grounds that the applicant had failed to submit documents relating to her husband's disability despite being asked to do so and could therefore not assess the level of dependency. The Federal Administrative Court did not hold an oral hearing stating that it would not give rise to further clarification of the case. Against this decision, the applicant lodged a second onward appeal to the Supreme Administrative Court.


The Supreme Administrative Court admitted that insofar as the applicant had only submitted a psychotherapist's confirmation of her husband's psychotherapeutic treatment for post-traumatic stress disorder upon request, this was not sufficient to fully clarify the level of dependency between the applicant and her disabled husband. However, the Supreme Administrative Court held, that the lower court should have clarified the facts by holding an oral hearing and therefore wrongly decided not to hold such a hearing. Based on the above, the Supreme Administrative Court overruled the lower court’s decision on the grounds that it had made merely speculative considerations when weighing up interests and was therefore unlawful.


Country of Decision
Austria
Court Name
AT: Supreme Administrative Court [Verwaltungsgerichtshof - VwGH]
Case Number
No Ra 2021/21/0339
Date of Decision
17/10/2023
Country of Origin
Russia
Keywords
Applicant with disabilities
Family life/family unity
Return/Removal/Deportation
RETURN